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2017 DIGILAW 190 (TRI)

Sudip Kumar Banerjee S/o Late Manimoy Banerjee v. Sukla Banerjee W/o Late Satyabrata Bhattacharjee

2017-04-11

T.VAIPHEI

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JUDGMENT AND ORDER : 1. By this application, the applicant is seeking condonation of delay of 385 days in presenting the connected appeal. 2. The impugned decree was passed as early 30-5-2015, yet the appeal came to be filed only 21-9-2016. According to the applicant, before the impugned decree was passed, the Survey Commissioner had submitted his report dated 17-3-2015 dividing the suit property into seven shares “looking like a Path measuring 6’ X 65’-3” and used to (by?) none.” The applicant had submitted a written objection on 9-4-2015 stating therein, among others, that the residential building of the applicant and the respondent No. 3 was in danger of demolition thereby rendering it useless to anyone. But the learned Civil Judge (Senior Division), Court No. 2, Agartala did not consider the same and passed the impugned final decree on 30-5-2015. In accordance with the preliminary decree, the applicant and all the co-sharers agreed to partition the suit property by distributing the shares to make every share useful to anyone. Consequently, the mother was allotted a nominal share to abide by the preliminary decree declaring seven shares whereupon a deed of partition was executed and registered on 14-7-2015; on the same date, the mother gifted her nominal share to the respondent No. 1 by a registered deed of gift, which was accepted by the latter. However, much to his surprise, the respondent No. 1 filed Execution (T) Case No. 02/16 before the learned Civil Judge (Senior Division), Court No. 2, West Tripura seeking execution of the impugned decree by suppressing the execution of the aforesaid partition deed as well as the gift deed. The applicant thereafter filed on 14-6-2016 his written objection U/s 47, CPC indicating therein the amicable settlement made among the parties and the consequential execution of the two deeds, but the learned Civil Court (Execution Court) without considering his written objection passed the order dated 20-7-2016 ordering the continuation of the execution proceedings. This prompted the applicant to file Civil Revision Petition No. 89/2016. It is the case of the applicant that, but for the amicable settlement of the case among the parties as indicated above, he would have filed an appeal against the impugned final decree immediately. This prompted the applicant to file Civil Revision Petition No. 89/2016. It is the case of the applicant that, but for the amicable settlement of the case among the parties as indicated above, he would have filed an appeal against the impugned final decree immediately. After receiving the execution notice, he filed the objection with the impression that he would get the relief merely by filing such objection which would obviate the need to file an appeal. Thus, according to the applicant, it was under the aforesaid circumstances that the delay has been occasioned. 3. The respondent No. 2, 4 and 5 resisted the application and filed their joint written objection. The answering respondents submit that the applicant has failed to satisfactorily explain the inordinate delay; negligence in the conduct of the case thus looms large. It is pointed out by them that there was no question of amicable settlement after final decree had been passed. Moreover, point out the answering respondents, the final decree has been executed on 22-12-2016. As the applicant has miserably failed to show sufficient cause for the inordinate delay, the delay cannot be condoned; a vested right has accrued to the answering respondent for the failure of the applicant to file the appeal in time. 4. The legal position with respect to the law of limitation was recently reiterated by the Apex Court in Brijesh Kumar vs. State of Haryana, (2014) 11 SCC 351 and this is what it said: “6. The issues of limitation, delay and laches as well as condonation of such delay are being examined and explained everyday by the courts. The law of limitation is enshrined in the legal maxim interest reipublicae ut sit finis litium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the rights of the parties, rather the idea is that every legal remedy must be kept alive for a legislatively fixed period of time. 7. The Privy Council in General Accident Fire and Life Assurance Corpn. Ltd. vs. Janmahomed Abdul Rahim, (1939-40) 67 IA 416 : (1941) 53 LW 212 : AIR 1941 PC 6 relied upon the writings of Mr. 7. The Privy Council in General Accident Fire and Life Assurance Corpn. Ltd. vs. Janmahomed Abdul Rahim, (1939-40) 67 IA 416 : (1941) 53 LW 212 : AIR 1941 PC 6 relied upon the writings of Mr. Mitra in Tagore Law Lectures, 1932 wherein it has been said that: (IA p. 426) A law of limitation and prescription may appear to operate harshly and unjustly in a particular case, but if the law provides for a limitation, it is to be enforced even at the risk of hardship to a particular party as the Judge cannot, on equitable grounds, enlarge the time allowed by the law, postpone its operation, or introduce exceptions not recognised by law. 8. In P.K. Ramachandran vs. State of Kerala, (1997) 7 SCC 556 : AIR 1998 SC 2276 , the Apex Court while considering a case of condonation of delay of 565 days, wherein no explanation much less a reasonable or satisfactory explanation for condonation of delay had been given, held as under: “6. Law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes and the courts have no power to extend the period of limitation on equitable grounds.” 9. While considering a similar issue, this Court in Esha Bhattacharjee vs. Raghunathpur Nafar Academy, (2013) 12 SCC 649 : (2014) 1 SCC (Civ) 713 : (2014) SCC (Cri) 450, laid down various principles inter-alia: * * * “21.5. (v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact. * * * 21.7. (vii) The concept of liberal approach has to encapsulate the conception of reasonableness and it cannot be allowed a totally unfettered free play. * * * 21.9. (ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go-by in the name of liberal approach. * * * 22.4. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go-by in the name of liberal approach. * * * 22.4. (d) The increasing tendency to perceive delay as a non-serious matter and, hence, lackadaisical propensity can be exhibited in a nonchalant manner requires to be curbed, of course, within legal parameters.” (See also Basawaraj vs. Land Acquisition Officer, (2013) 14 SCC 81 ) 10. The courts should not adopt an injustice-oriented approach in rejecting the application for condonation of delay. However the court while allowing such application has to draw a distinction between delay and inordinate delay for want of bona fides of an inaction or negligence would deprive a party of the protection of Section 5 of the Limitation Act, 1963. Sufficient cause is a condition precedent for exercise of discretion by the court for condoning the delay. This Court has time and again held that when mandatory provision is not complied with and that delay is not properly, satisfactorily and convincingly explained, the court cannot condone the delay on sympathetic grounds alone.” 5. On careful reading of the decision extracted above, it is thus evident that delay can be condoned provided there is sufficient cause for the delay, but what cannot be condoned even on sympathetic grounds is an inordinate delay for want of bona fides of an inaction or negligence. Once it is, on the basis of the pleadings, found that the delay is inordinate due to gross inaction or negligence on the part of the applicant, the delay cannot be condoned at all. The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into account. Justice is not a one way traffic; courts have to be careful weighing the scale of balance of justice in respect of both the parties. It is high time to give a go-by to the increasing tendency to perceive delay as a non-serious matter in the name of liberal approach. It must not be forgotten that the other side has already earned a vested right to the fruit of his litigation once the period of limitation is over. It is only when the delay has been satisfactorily explained that the delay can be condoned. It must not be forgotten that the other side has already earned a vested right to the fruit of his litigation once the period of limitation is over. It is only when the delay has been satisfactorily explained that the delay can be condoned. In the instant case, the explanation of delay given by the applicant is far from satisfactory. Had an executable compromise been actually arrived at on or about 14-7-2015, as contended by him, such development could have been placed before the execution court or before this Court when civil revision petition was filed. Moreover, there is no dispute that the final decree has already been executed. In my considered opinion, the explanation of the delay offered by the applicant cannot constitute “sufficient cause” within the meaning of Section 5 of the Limitation Act, 1963. 6. For the reasons stated in the foregoing, there is no merit in this application, which is hereby dismissed. The parties are, however, directed to bear their respective costs.